Could we undo the no-fault divorce revolution if we tried?

by Walter Olson on April 18, 2014

Megan McArdle has some thoughts on the role of changing divorce law among a broader shift of social mores and expectations on marriage, cohabitation, and childbearing in and out of wedlock.

Note, however, that reformers might take an interest in reconsidering the no-fault revolution from many motives other than a simple wish to discourage the rate of divorce across the board. (Contrary to some imaginings, critics of no-fault are a diverse crew, including social scientists, economists, lawyers and judges writing from secular, liberal, and classical-liberal as well as religious-conservative standpoints.) Some see no-fault as deficient in fairness in deciding between the claims of offending and innocent spouses. Some worry that it results in a first-mover advantage in favor of whichever spouse initiates the unraveling of a marriage (by removing assets, for example) and that such an advantage might have destructive effects if not corrected for in some way. And while (as McArdle argues) an expectation of marriage as being a hassle to leave might discourage entry into the institution, it is also possible that an expectation of it as being easily dissolved and lacking in real security might discourage entry by other persons.

“No-fault,” incidentally, may not be the most accurate term for the new system (“unilateral” would be more precise, sometimes combined with “relatively speedy”). While fault as such in contested cases may be kicked out the front door, it very often comes back in through the window in the form of arguments about parental fitness, appropriate asset division and other issues that are still open for argument in court.

{ 4 comments }

1 Hans 04.18.14 at 11:07 am

No-fault divorce scares many reliable breadwinners and discourages them from getting married in the first place. They don’t want to be taken to the cleaners by a spouse who gets bored of them or turns out to be unfaithful.

Divorce law in many states effectively contains both first-mover and anti-breadwinner biases, which discourage marriage partly because no-fault divorce is so easy and the spouse initiating the divorce can take the other spouse to the cleaners (contrary to gender stereotype, two-thirds of all divorces are initiated by wives, rather than husbands), like obtaining indefinite alimony based on a very short marriage.

This passage in your blog post is the whole reason for my pre-nup:

“it is also possible that an expectation of it as being easily dissolved and lacking in real security might discourage entry by other persons.”

No-fault divorce means less economic security for breadwinner spouses, especially husbands and fathers. In divorce cases, Virginia courts do things that are economically inefficient and unfair to breadwinner spouses, like awarding permanent alimony based on even very short marriages (Bristow v. Bristow (1980)), then constantly allowing the alimony levels to be reset based on upward changes on the paying spouses income (see Conway v. Conway (1990)), but not downward changes (see Antonelli v. Antonelli (1991)), and allowing child and spousal support levels to be set based not on what the paying spouse actually makes (which would be an easy mechanical calculation that would not enrich lawyers), but rather on higher, hypothetical (and sometimes arbitrary) estimates of what the paying spouse could make, or once made (“imputed income”), as in the cases of Cochran v. Cochran (1992), and Antonelli v. Antonelli (1991).

Virginia’s divorce laws are an impediment to small business creation by divorced people. As prominent divorce lawyer Richard Crouch noted in the Fall 1992 article in Family Law News, a publication of the Virginia Bar, Virginia courts employ a “heads-I-win, tails-you-lose” approach to people who try to start small businesses (see Crouch, “Support Obligations in Mean Times: The Virginia Courts and the Recession,” Family Law News, Fall 1992, available http://www.abolish-alimony.org/reports/fight-back/contempt/Virgina-court-imputed-income-92.pdf )

If you leave a steady job to try to set up a small business, and it succeeds, you will have your alimony and child support payments increased over their prior levels (See Conway v. Conway (1990)).

But if the business fails (as most small businesses do), resulting in your income falling below its prior levels, the courts will force you to pay alimony and child support as if you were still making the higher income you made at your prior job. (See Antonelli v. Antonelli (1991)).

Virginia courts are also frankly gender-biased in child-custody and alimony decisions, sometimes awarding lifelong alimony to wives based on short marriages, but refusing to award alimony to husbands who were in longer term marriages and made just a fraction of what their wives’ made.

For example, the Virginia Court of Appeals denied alimony to a father even though his ex-wife made five times what he did, and he was the caregiver for the couple’s children, and instead ordered him to pay his ex-wife 40 percent of his meager disability pension, in Asgari v. Asgari [2000]. It is hard to imagine a similarly-situated ex-wife not receiving alimony for at least a few years. For example, in Calvin v. Calvin [1999], the appeals court awarded a wife alimony despite describing her as adulterous, “vindictive and cruel”). As Crouch notes, in Virginia family law, “sex is the difference that makes a difference.”

2 Malcolm 04.19.14 at 7:32 am

I notice Megan McArgle’s comparison with the European employment laws, which make employers reluctant to hire staff. However, there is an obvious difference. The power is asymmetrical. The employee can resign anytime he likes, but the boss can’t fire him. No fault divorce, on the other hand, favours whichever party wants to break the contract. Marriage thus becomes the only contract where the guilty party in not only left unpunished, but is actually rewarded.
But people still want to live together. So the law has become perverse in granting de facto relationships much the same rights as marriage. The result is that people get involved in loose relationships that are more likely to break down, and then find themselves in an emotional and legal quagmire – what one author called, “Getting Married – Unwittingly and Unwillingly.”

3 tweell 04.21.14 at 12:33 pm

Get the government out of marriage. Separation of church and state! The Covenant of marriage is religious, so government should butt out. A civil contract drawn up by the couple (or threesome, etc) should substitute for the current marriage license.

4 Beverly Willett 04.25.14 at 12:06 pm

My response to the above, the recent Wash. Post piece and McArdle’s, in the Philadelphia Inquirer this morning: http://www.philly.com/philly/opinion/inquirer/20140425_Time_to_reform_divorce_laws.html

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